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Vol. 2, No. 61 DECISIONS ISSUED APRIL 11, 1994 FAMILY LAW 20-4-3033 Christopher W. Unger, Sr. v. Peggy Ann Unger, Ch. Div. (13 pp.) Since environmental tobacco smoke (ETS) may affect the safety and health of children of the marriage, fact that a parent smokes cigarettes is a permissible factor for court to consider under N.J.S.A. 9:2-1 et seq. in deciding child custody. AUTOMOBILES _ EVIDENCE 05-2-3034 Michael A. Kopecky . Julie A. Plevyak et al., App. Div. (7 pp.) Trial court properly instructed jury to disregard testifying doctor’s testimony that a neurologist — who did not testify — had diagnosed plaintiff as suffering nerve damage, since the statement was an out-of-court opinion on “ultimate issues,” not a predicate opinion that formed the basis of the testifying doctor’s opinion. LANDLORD AND TENANT 27-1-3035 Housing Authority of the Town of Morristown v. Cathy Little, Sup. Ct. (29 pp. incl. conc.) Tenant Hardship Act, N.J.S.A. 2A:42-10.6, which grants courts the power to stay an eviction for up to six months, does not preclude a court from vacating a judgment of possession on equitable grounds under Rule 4:50-1, but that extraordinary remedy should be used only in exceptional circumstances and to avoid an unjust result, such as here, where tenant is on welfare, landlord is a publicly- subsidized housing provider of last resort, and tenant paid the entire amount of rent due within three days after being evicted. WRONGFUL DEATH _ MEDICAL MALPRACTICE 40-2-3036 Robert Deal, Sr., Executor, et al. v. Alan Waronker, D.O., et al., App. Div. (11 pp.) Involuntary dismissal at the close of plaintiffs’ proofs reversed where record shows that radiologist’s failure to notify referring physician that decedent was possibly suffering from pneumonia delayed her receiving the prompt aggressive treatment needed to combat the condition, since jury was entitled to determine whether — considering decedent’s pre-existing cardio-pulmonary disease — the failure to notify increased the risk of harm to decedent and whether that increased risk was a substantial factor in bringing about her death. CRIMINAL LAW AND PROCEDURE 14-2-3037 State v. Hugo A. Alvarez, App. Div. (16 pp.) Eyewitness testimony at Wade hearing that she had identified defendant shortly after his arrest by the red bandanna he was wearing was admissible at trial, since there was no undue suggestion in the out-of-court identification procedure. 14-2-3038 State v. Michael R. Ardila, App. Div. (14 pp.) Although prosecutor’s statement during summation — that defense chose to present its case by way of exhibits — was subject to potential misinterpretation, trial judge’s instructions and voir dire of each of the jurors were adequate to assure there was no denial of a fair trial. 14-2-3039 State v. Dennis Hunt, App. Div. (5 pp.) Denial of “gap time” credit — from final revocation of defendant’s parole until his sentencing for new offenses — was proper, since here is nothing in N.J.S.A. 2C:44-5b to support a legislative intent to grant gap-time credit to a defendant who, while on parole, commits a violation that results in his sentencing for the new offense.

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